Their Lordships took time for consideration.
JUDGMENT
November 21.
LORD HAILSHAM OF ST. MARYLEBONE L.C.
My Lords, the respondent to this appeal was convicted at the Liverpool Crown Court on September 28, 1972, of attempting to handle stolen goods exactly 12 months previously. He was sentenced to 12 months' imprisonment and an earlier suspended sentence was activated. The Court of Appeal (Criminal Division) quashed his conviction, certified that a question of law of general public interest was involved and gave leave to appeal. Notwithstanding the quashing of his conviction, his continued detention was directed under section 37 (2) of the Criminal Appeal Act 1968. We were told during argument that the result of the proceedings was of no more than academic interest to the respondent himself since he is already serving a sentence, or sentences, which would more than cover the terms imposed in the present case. This enabled counsel to deal with the questions of law involved in an admirable atmosphere of detachment combined with a commendable zeal to extend the frontiers of legal knowledge.
The facts on which the present proceedings were founded are well summarised in the judgment of Lord Widgery C.J. in the Court of Appeal. In the autumn of 1971, a considerable quantity of corned beef was stolen from a well known firm in Liverpool. Some days later, a hopelessly overloaded van was noticed by the police travelling south. They stopped the van and found the corned beef inside. The van was so badly overloaded that part of the cargo had to be removed, but it was then allowed to go on with the remainder of the load and with two police officers concealed inside, and one disguised police officer beside the driver. The object was to catch the London receivers by using the van, and its load, as a decoy. After a rather adventurous journey, the van arrived by a circuitous route at a rendezvous on the M1 at the Scratchwood Service Area in Hertfordshire, when it was met, or joined, by the respondent and at least one other, evidently by arrangement, and then driven on to London under the respondent's direction, but with the police still on board. The respondent played a prominent part in assisting in the disposal of the van and its load and thus handled the goods within the meaning of the Theft Act 1968, section 22. Finally the trap was sprung and various members of the conspiracy arrested. Other members of the gang were tried and dealt with separately. But the respondent was tried later and dealt with in the present proceedings after the first trial had been disposed of.
There were two counts in the indictment. The second was a charge of conspiracy with persons unknown to handle stolen goods. This, in the light of the jury's subsequent verdict, could hardly have failed. For reasons I am quite unable to understand, the prosecution did not proceed with this charge and the defence prudently secured a directed verdict of not guilty. The first charge was one of attempting to handle the stolen goods. But in this, too, the prosecution do not seem to have thought things through. The completed offence of handling was not charged since the prosecution were of the opinion that, by the time the goods were handled, they were no longer to be treated as stolen, because in the view taken, they were restored to lawful custody within the meaning of section 24 (3) of the Theft Act 1968, after the police had prepared the trap. Whether this was in truth so, is, I think, open to question, but it is not possible to go back on this concession now, or even to inquire how wise it was to have made it. But, if the goods were in truth restored to lawful custody, as the prosecution supposed and conceded, one would have thought that a count for theft or attempted theft of them would have been appropriate, and, like the charge of conspiracy, ought properly to have succeeded. But, as it was not contained in the indictment, I do not think it would be open to this House to substitute a verdict of theft or attempted theft under the combined provisions of the Criminal Appeal Act 1968, section 3 and the Criminal Law Act 1967, section 6 (3) and (4). See, for instance, Reg. v. Woods [1969] 1 Q.B. 447; Reg. v. Springfield (1969) 53 Cr.App.R. 608, which I am inclined to think establish that an alternative verdict under section 6 (3) would not have been open to the jury, without a separate count in the indictment. At the trial, the respondent told a story which was not believed by the jury, but his counsel took advantage of the position in which the prosecution had placed itself to submit to the court the formidable argument that a man could hardly be convicted of attempting to handle stolen goods when the goods were not stolen at the time of the attempted handling. This submission failed before the trial judge, but it succeeded before the Court of Appeal and, in my opinion, it succeeds here too.
I was at first inclined to think that section 22 of the Theft Act 1968 was drafted in such a way as to permit the construction that to be stolen for the purpose of section 22 (1) it was sufficient that the goods had been stolen without continuing to be stolen at the time of the handling, provided, of course, that the accused believed them at the time of the handling to be stolen. I thought that the expression "believed" in the subsection aided the view that it could cover a state of facts where the defendant believed the goods to be stolen when they were not in fact still stolen at that moment of time. But, on consideration, I am sure that this would be a false construction, and that the expression "believed" was inserted to guard against acquittals which had taken place under the former Larceny Act when it was necessary to prove knowledge that the goods were stolen and belief was not enough. If I were not already certain that this was the true meaning of section 22 (1), the provisions of section 24, and, in particular, section 24 (3), would, I think, clinch the matter. In my view, it is plain that, in order to constitute the offence of handling, the goods specified in the particulars of offence must not only be believed to be stolen, but actually continue to be stolen goods at the moment of handling. Once this is accepted as the true construction of the section, I do not think that it is possible to convert a completed act of handling, which is not itself criminal because it was not the handling of stolen goods, into a criminal act by the simple device of alleging that it was an attempt to handle stolen goods on the ground that at the time of handling the accused falsely believed them still to be stolen. In my opinion, this would be for the courts to manufacture a new criminal offence not authorised by the legislature.
This would be enough to decide the result of this appeal, but both counsel invited us to take a wider view of our obligations, and, since the question was discussed by the Court of Appeal in general terms and since I believe that the result of our decision is to overrule a number of decided cases, at least to some extent, I feel bound to accede to this invitation. The question certified by the Court of Appeal was:
<cite>"If stolen goods are returned to lawful custody and thus cease to be stolen by virtue of section 24 (3) of the Theft Act 1968 can a person who subsequently dishonestly handles goods believing them to be stolen be guilty of the offence of attempting to handle stolen goods?"
I have already given a negative answer to this question, but the range of the discussion before us demands a wider consideration of the principles involved.
An attempt to commit a criminal offence is itself a criminal offence at common law, and by section 6 (4) of the Criminal Law Act 1967, it remains an offence as an attempt notwithstanding that the accused person is shown to have been guilty of the completed offence. But what is an attempt? The earliest attempt at definition in comparatively modern times is in Reg. v. Eagleton (1855) Dears.C.C. 515, 538, per Parke B. when he said:
"The mere intention to commit a misdemeanour is not criminal. Some act is required, and we do not think that all acts towards committing a misdemeanour are indictable. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are; and if, in this case, after the credit with the relieving officer for the fraudulent overcharge, any further step [emphasis his] on the part of the defendant had been necessary to obtain payment, . . . we should have thought that the obtaining credit . . . would not have been sufficiently proximate to the obtaining the money. But, on the statement in this case, no other act on the part of the defendant would have been required. It was the last act, depending on himself, [emphasis his] towards the payment of the money, and therefore it ought to be considered as an attempt."
A more modern definition is to be found in the judgment of Lord Parker C.J. in Davey v. Lee [1968] 1 Q.B. 366, 370 where he said:
"What amounts to an attempt has been described variously in the authorities, and for my part I prefer to adopt the definition given in Stephen's Digest of Criminal Law, 5th ed. (1894), art, 50, where it says that: 'An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted.' As a general statement that seems io me to be right, although it does not help to define the point of time at which the series of acts begins.
That as Stephen said, depends upon the facts of each case. A helpful definition is given in paragraph 4104 in the [then] current (36th) edition (1966) of Archbold Criminal Pleading Evidence & Practice where it is stated in this form: 'It is submitted that the actus reus necessary to constitute an attempt is complete if the prisoner does an act which is a step towards the commission of a specific crime, which is immediately and not merely remotely connected with the commission of it, and the doing of which cannot reasonably be regarded as having any other purpose than the commission of the specific crime.'"
Before proceeding further, I desire to make an observation on the expression "actus reus" used in the quotation above. Strictly speaking, though in almost universal use, it derives, I believe, from a mistranslation of the Latin aphorism: "Actus non facit reum nisi mens sit rea." Properly translated, this means "An act does not make a man guilty of a crime, unless his mind be also guilty." It is thus not the actus which is "reus," but the man and his mind respectively. Before the understanding of the Latin tongue has wholly died out of these islands, it is as well to record this as it has frequently led to confusion. From the two definitions cited above, I derive the following propositions relevant to the present appeal.
(1) There is a distinction between the intention to commit a crime and an attempt to commit it. Thus, in this case, the respondent intended to commit a crime under section 22 of the Theft Act. But this dishonest intention does not amount to an attempt. This distinction has not always been observed in the discussion of cases on the law affecting attempts.
(2) In addition to the intention, or mens rea, there must be an overt act of such a kind that it is intended to form and does form part of a series of acts which would constitute the actual commission of the offence if it were not interrupted. In the present case the series of acts would never have constituted and in fact did not constitute an actual commission of the offence, because at the time of the handling the goods were no longer stolen goods.
(3) The act relied on as constituting the attempt must not be an act merely preparatory to commit the completed offence, but must bear a relationship to the completion of the offence referred to in Reg. v. Eagleton, Dears.C.C. 515, 538 as being "proximate" to the completion of the offence and in Davey v. Lee [1968] 1 Q.B. 366, 370 as being "immediately and not merely remotely connected" with the completed offence. I do not think that the present case turns on the test of proximity at all, although, as will be seen, many of the arguments canvassed involve a discussion of it. Obviously whenever the test of proximity becomes crucial in a particular case, difficult questions of fact and degree will arise which will call for considerable skill on the part of the trial judge in directing the jury. I do not think these problems arise here.
In his discussion in the present case of the legal implications of inchoate, but uncompleted, sequences of actions in cases which might or might not amount to criminal attempts, Lord Widgery C.J. attempted to analyse them into two categories (see [1973] 2 W.L.R. 942, 944) namely:
(1) "The first class is the type of case where the accused has embarked on a course of conduct which, if completed, will result in an offence but for some reason breaks off that course of conduct and never completes the action required to amount to the offence."
In this first class of case, Lord Widgery C.J. classified the
"pickpocket who puts his hand in a man's pocket only to find it empty; the burglar who is disturbed by the police when he is in the process of trying to break open the window; the safebreaker who finds when he gets to the safe, it is too difficult for him and he cannot open it."
"In general," and Lord Widgery C.J. emphasised that he dealt only in generalities in this context, he thought "a charge of attempt can properly be laid in that type of case." But it was otherwise, he thought, in the second class of case which he described as follows, at p, 945:
(2) "where the accused has meticulously and in detail followed every step of his intended course believing throughout that he was committing a criminal offence and when in the end it is found that he has not committed a criminal offence because in law that which he planned and carried out does not amount to a criminal offence at all."
Lord Widgery C.J. placed the present case in this second class and, after discussing a number of divergent authorities, came to the conclusion that in such a case a criminal attempt had not been committed.
With respect, I do not altogether agree that this dual classification is adequate, and if it were, I am not quite sure why all the examples given should be classified as they were. I note that in the New Zealand case of Reg. v. Donnelly [1970] N.Z.L.R. 980, which, except in so far as it relates to the construction of the relevant New Zealand statutes, is very much on all fours with this, Turner J., adopts a six-fold classification. He says, at p. 990:
"He who sets out to commit a crime may in the event fall short of the complete commission of that crime for any one of a number of reasons. First, he may, of course, simply change his mind before committing any act sufficiently overt to amount ta an attempt. Second, he may change his mind, but too late to deny that he had got so far as an attempt. Third, he may be prevented by some outside agency from doing some act necessary to complete commission of the crime - as when a police officer interrupts him while he is endeavouring to force the window open, but before he has broken into the premises. Fourth, he may suffer no such outside interference, but may fail to complete the commission of the crime through ineptitude, inefficiency or insufficient means. The jemmy which he has brought with him may not be strong enough to force the window open. Fifth, he may find that what he is proposing to do is after all impossible - not because of insufficiency of means, but because it is for some reason physically not possible, whatever means be adopted. He who walks into a room intending to steal, say a specific diamond ring, and finds that the ring is no longer there, but has been removed by the owner to the bank, is thus prevented from committing the crime which he intended, and which, but for the supervening physical impossibility imposed by events he would have committed. Sixth, he may without interruption efficiently do every act which he set out to do, but may be saved from criminal liability by the fact that what he has done, contrary to his own belief at the time, does not after all amount in law to a crime."
On the whole, though I hope it will never be subjected to too much analysis, as it is merely a convenient exposition and illustration of classes of case which can arise, I find this classification more satisfactory than Lord Widgery's dual classification. Applying the three principles derived from my primary definitions, I would seek to obtain the following results, (1) In the first case no criminal attempt is committed. At the relevant time there was no mens rea since there had been a change of intention, and the only overt acts relied on would be preparatory and not immediately connected with the completed offence. (2) In the second case there is both mens rea and an act connected immediately with the offence. An example would be an attempted rape where the intended victim was criminally assaulted, but the attacker desisted at the stage immediately before he had achieved penetration. It follows that there is a criminal attempt. (3) The third case is more difficult because, as a matter of fact and degree, it will depend to some extent on the stage at which the interruption takes place, and the precise offence the attempt to commit which is the subject of the charge. In general, however, a criminal attempt is committed, assuming that the proximity test is passed. (4) In the fourth case there is ample authority for the proposition that, assuming the proximity test is passed, a criminal attempt is committed. But here casuistry is possible. Examples were given in argument of shots at an intended victim which fail because he is just out of range, or because, as in the case of the well known popular novel, The Day of the Jackal, the intended victim moves at the critical moment, or when a dose of poison insufficient to kill is administered with intent to murder. In all these cases the attempt is clearly criminal. (5) The fifth case is more complicated. It is clear that an attempt to obtain money by a false pretence which is not in fact believed, is criminal notwithstanding that the consequences intended were not achieved: see Reg. v. Hensler (1870) 11 Cox C.C. 570. The same would be true of an attempted murder when the victim did not actually die for whatever reason. But I do not regard these as true, or at least not as typical, examples of the fifth class. They belong rather to the fourth, since the criminal had done all that he intended to do, and all that was necessary to complete the crime was an act or event wholly outside his control. Reg. v. M'Pherson (1857) Dears. & B. 197 where the conviction was quashed, may be regarded as simply a case where a man was charged with one thing and convicted of another. But both the facts and the reasoning of the judges are much closer to the example postulated by Turner J. in Reg. v. Donnelly [1970] N.Z.L.R. 980 as typical of the fifth class, though Turner J.'s own opinion to the effect that the attempt is criminal depends on the terms of the New Zealand statute and has no application to English law. In Reg. v. M'Pherson, Dears. & B. 197 the reasoning of the English judges on English law was to the contrary. Cockburn C.J. said, at p. 201:
"Here the prisoner had the intention to steal before he went into the house; but when he got there the goods specified in the indictment were not there; how then could he attempt to steal those goods? There can be no attempt asportare unless there is something asportare."
Bramwell B., anticipating the decisions in Reg. v. Collins (1864) 9 Cox C.C. 497, said, at p. 201:
"The argument that a man putting his hand into an empty pocket might be convicted of attempting to steal, appeared to me at first plausible; but suppose a man, believing a block of wood to be a man who was his deadly enemy, struck it a blow intending to murder, could he be convicted of attempting to murder the man he took it to be?"
And, in giving judgment, Cockburn C.J. said, at p. 202:
"The word attempt clearly conveys with it the idea, that if the attempt had succeeded the offence charged would have been committed, and therefore the prisoner might have been convicted if the things mentioned in the indictment or any of them had been there; but attempting to commit a felony is clearly distinguishable from intending to commit it. An attempt must be to do that which, if successful, would amount to the felony charged; but here the attempt never could have succeeded, as the things which the indictment charges the prisoner with stealing had already been removed - stolen by somebody else."
And Bramwell B. was equally emphatic.
Clearly Cockburn C.J. and Bramwell B. were of the view that Turner J.'s example of his fifth class of inchoate act was not a criminal attempt. Reg. v. M'Pherson, Dears. & B. 197 was followed in Reg. v. Collins, 9 Cox C.C. 497 by a court which also included Cockburn C.J. and Bramwell B. and was the identical case postulated by Bramwell B. in the earlier case of a man putting his hand into an empty pocket. Reg. v. Goodchild (1846) 2 Car. & K. 293, which is often cited in a contrary sense, was not a case of attempt at all, but of the statutory offence of using an instrument with intent etc. -a totally different conception, because an attempt involves more than an intent.
It was not long, however, before the decision in Reg. v. Collins was challenged by Lord Coleridge C.J. in Reg. v. Brown (1889) 24 Q.B.D. 357, 359 as "no longer law," but without giving reasons and in Reg. v. Ring (1892) 17 Cox C.C. 491, 492 (an early "mugging" case on the Metropolitan Railway) with even greater emphasis and even fewer reasons. Since then Reg. v. Collins has generally been held to be bad law. On this I express no concluded opinion, but in general I regard the reasoning in Reg. v. M'Pherson and Reg. v. Collins as sound and in general I would consider that "attempts" in Turner J.'s fifth class of case are not indictable in English law, and I consider that the purported overruling of Reg. v. Collins needs further consideration. In addition to the reported cases, we postulated in argument a number of real and imaginary instances of this class. In The Empty Room, Sherlock Holmes' enemy, Colonel Maron, was induced to fire at a wax image of the detective silhouetted in the window, though Holmes prudently rejected Inspector Lestrade's advice to prefer a charge of attempted murder and so the matter was never tested; in Rex v. White [1910] 2 K.B. 124, a man who put a small quantity of cyanide in a wine glass, too small to kill, was held guilty of attempted murder. This was an example of the fourth of Turner J.'s cases and therefore criminal. But quaere, what would have been the position if the glass administered had contained pure water, even though the accused believed falsely that it contained cyanide? We discussed the situation when a would-be murderer attempts to assassinate a corpse, or a bolster in a bed, believing it to be the living body of his enemy, or when he fires into an empty room believing that it contained an intended victim; and we had our attention drawn to an American case where the accused fired at a peephole in a roof believed to be in use by a watching policeman who was in fact a few yards away. In most of these cases, a statutory offence of some kind (e.g. discharging a firearm with intent to endanger life) would be committed in English law, but in general I would think that a charge of an attempt to commit the common law offence of murder would not lie since, if the contemplated sequence of actions had been completed (as in some of the supposed instances they were) no substantive offence could have been committed of the type corresponding to the charge of attempt supposed to be laid. I get some support for this view from the summing up of Rowlatt J. in Rex v. Osborn (1919) 84 J.P. 63. But I prefer to red on the principle above stated, since Osborn was couched in more popular language than is appropriate to what has become a somewhat theoretical discussion. At the end of the day there must be a question of fact for the jury. The judge may direct them what facts, if established, could constitute an attempt, or would be evidence of an attempt. The jury alone can decide whether there was an attempt.
(6) Turner J.'s sixth class of case was where a man efficiently does "without interruption every act which he set out to do, but may be saved from criminal liability by the fact that what he has done, contrary to his own belief at the time, does not after all amount to a crime." This is really equivalent to Lord Widgery's second class. I have already explained that I consider that the present appeal fails on the proper construction of section 22 of the Theft Act 1968. But I think that this is a special example of a wider principle, and I agree with Turner J.'s conclusion about it.
In Reg. v. Collins, 9 Cox C.C. 497, Bramwell B, put the rhetorical question, at p. 498:
"Suppose a man takes away an umbrella from a stand with intent to steal it, believing it not to be his own, but it turns out to be his own, could he be convicted of attempting to steal?"
In Reg. v. Villensky [1892] 2 Q.B. 597 Lord Coleridge C.J. in circumstances not unlike the present, following Reg. v. Dolan (1855) Dears. C.C. 436, held that prisoners could be indicted under the old law for receiving stolen goods, and made no reference to the possibility of a conviction for attempt.
In Reg. v. Williams [1893] 1 Q.B. 320, 321, the same Lord Chief Justice said that a boy below the age at which he could be properly indicted for rape could not be convicted on the same facts for an attempt. I do not agree with the contrary opinion of Hawkins J. in the same case, even though it was possibly supported by the rest of the court. The same reasoning would apply to a case of unlawful carnal knowledge (cf. Reg. v. Waite [1892] 2 Q.B. 600), whether, as there, it was the male who was by reason of age incapable in law of committing the offence, or the female who was in law incapable by reason of her age of having it committed against her, and it would not, in my view, matter in the latter case that the male falsely believed her to be under age. Support for his view is to be found in Director of Public Prosecutions v. Head [1959] A.C. 83, which was a charge of a completed offence in relation to a mental defective, but counsel for the respondent made considerable play with the argument a silentio to be derived from the fact that no one suggested the possibility of a conviction for an attempt. In my view, it is a general principle that Turner J.'s sixth class of attempts are not criminal, not because the acts are not proximate or because the intention is absent, but because the second of the three propositions I derive from the two judicial definitions I cited above is not satisfied, The acts are not part of a series "which would constitute the actual commission of the offence if it were not interrupted." In this event the often discussed question whether the legal impossibility derives from a mistake of fact or law on the part of the accused is hardly relevant.
This discussion enables me to deal with the cases cited in the judgment of the Court of Appeal. Like Lord Widgery C.J., I disagree with the decision in People v. Rojas (1961) 10 Cal.Rptr. 465 and prefer the decisions in Reg. v. Donnelly [1970] N.Z.L.R. 980 and People v. Jaffe (1906) 185 New York 496 (overruling the decisions in the lower courts, cf. (1906) 98 New York Supplement 406). I agree with the decision in Rex v. Percy Dalton (London) Ltd. (1949) 33 Cr.App.R. 102, and particularly with the quotation from Birkett J., cited by Lord Widgery C.J. in the present case, where he said, at p. 110:
"Steps on the way to the commission of what would be a crime, if the acts were completed, may amount to attempts to commit that crime, to which, unless interrupted, they would have led; but steps on the way to the doing of something, which is thereafter done, and which is no crime, cannot be regarded as attempts to commit a crime. "
I would add to the last sentence a rider to the effect that equally steps on the way to do something which is thereafter not completed, but which if done would not constitute a crime cannot be indicted as attempts to commit that crime. It is, of course, true that, at least in theory, some villains will escape by this route. But in most cases they can properly be charged with something else - statutory offences like breaking and entering with intent etc., or loitering with intent etc., using an instrument with intent etc., discharging or possessing a firearm with intent etc., or as here, common law offences like conspiring to commit the same offence as that the attempt to commit which is charged, or even committing a substantive offence of a different kind, as here, stealing or attempting to steal. It follows also from what I have said that the reasoning in Reg. v. Miller (1965) 49 Cr.App.R. 241 cannot be supported although, on the present definitions in the Theft Act 1968, the result might possibly have been the same for different reasons. I would also add that I think Reg. v. Curbishley (1970) 55 Cr.App.R. 310 is wrongly decided, and I respectfully dissent from Lord Widgery C.J.'s view that it can be usefully distinguished on the facts from the present case. If I am wrong about this, I would place it in the fifth of Turner J.'s categories in Reg. v. Donnelly though on the view I take I think it properly belongs to the sixth.
In the result, in my view, the appeal should be dismissed. The appellant's costs will be met out of central funds. The respondent is, I understand, legally aided. The question certified as of general public interest by the Court of Appeal should be answered in the negative.
LORD REID. My Lords, the charge against the respondent was "attempted handling stolen goods." That must mean an attempt to commit the crime created by section 22 of the Theft Act 1968. It is clear from the terms of that section and of section 24 (3), that the goods must be goods which have been stolen but have not been restored to lawful custody before the commission of the offence. It has been admitted, though perhaps wrongly, that the goods to which the charge relates had been restored to lawful custody before the alleged offence was committed. So there could be no offence under section 22 with regard to them. There is a reference in the section to the accused believing the goods to be stolen goods. But that does not widen the ambit or scope of the section: it merely makes the section apply to a case where the goods are, in fact, stolen goods but the accused does not know that but only believes them to be so.
But a theory has been evolved that there can be an attempt to commit an offence although in fact that offence could not be committed. It is said that if the accused does not know the true facts but erroneously believes the facts to be such that his conduct would be an offence if the facts had been as he believes them to be, then he is guilty of an attempt to commit the offence.
In the case of a statutory offence that appears to me to be clearly wrong. The only possible attempt would be to do what Parliament has forbidden. But Parliament has not forbidden that which the accused did, i.e., handling goods which have ceased to be stolen goods. The section defines both the actus reus and the mens rea required to constitute the offence. Both must be proved. Here the mens rea was proved but there was no actus reus so the case is not within the scope of the section.
I suppose it would be said that attempt to commit any crime is a common law offence. But how can an attempt to do something which has not been forbidden by Parliament, and is not in itself a common law offence, be a common law offence. No possible process of construction can make section 22 mean that if a person handles goods which are not stolen goods he commits an offence if he believes them to have been stolen. So if this theory were right the common law must, when the Act was passed, have created a new crime which goes beyond the ambit of the statutory offence and is not authorised by the statute; a crime which does not depend on what the accused did but on what he erroneously believed that he was doing. The objections both to the creation of such a crime and to its nature are obvious.
But the objections to the theory are by no means confined to statutory offences. The theory appears to have been based on some plausible but erroneous decisions of the last decade of the nineteenth century. Some attempt has been made to pray in aid a few earlier decisions but they dealt not with attempt but with intent which is quite a different thing. If doing something with intent to procure a certain result is an offence, you can certainly be guilty of that offence if you do that thing with that intent although in the circumstances it was not possible to procure that result. All the requirements of the statute are satisfied. An early example is Reg. v. Goodchild (1846) 2 Car. & K. 293, where the offence was to administer a noxious thing with intent to procure a miscarriage. It was no defence that the woman to whom the noxious thing was administered was not with child. The question now under discussion would only have arisen if the accused had administered something quite harmless in the belief that it was a noxious thing.
Another case of a different kind sometimes cited in support of the theory is Reg. v. Hensler (1870) 11 Cox C.C. 570. The accused attempted to obtain money by false pretences by sending a letter. The recipient was not deceived. But the accused was convicted. The crime of obtaining money by false pretences is unusual in that the last act constituting the crane is done not by the criminal but by the victim. Here it was perfectly possible that when the letter was sent the recipient might have been deceived and have paid. The accused had done all that he could do toward commission of the crime but final commission of the crime had been prevented by the conduct of the victim. This case appears to me to afford no support whatever to the theory I am discussing. The point would have arisen if the letter had been sent to a person who was dead. The accused would then have been attempting something which was in the circumstances impossible.
Two cases decided about the middle of last century are quite inconsistent with this theory: Reg v. M'Pherson (1857) Dears. & B. 197 and Reg. v. Collins (1864) 9 Cox C.C. 497. They have been fully examined by Lord Hailsham of St. Marylebone L.C., and I shall only add that the reasoning of the learned judges who took part appears to me to be convincing. But then the court took a very unusual course. In Reg. v. Brown, 24 Q.B.D. 357 and Reg. v. Ring (1892) 17 Cox C.C. 491 it disapproved the decision in Reg. v. Collins without giving any reasons. I cannot regard a decision given without reasons as having any great authority and despite the passing of 80 years I think that your Lordships are well entitled to reverse these decisions if satisfied that they are wrong.
The immediate question was whether a pickpocket can be guilty of attempted theft if he puts his hand into an empty pocket. Lord Hailsham of St. Marylebone L.C, has quoted the observation of Bramwell B. that this is plausible but unsound. The ordinary man would say without stopping to think - of course he was attempting to steal. But if we stop and think - one cannot just steal, one must steal something. So if there is nothing there to steal there could be no theft, and we are back at the general question -can you attempt to commit a crime in circumstances where the commission of the crime is impossible?
What, then, is meant by an attempt to commit a crime? Normally, when a person commits a deliberate crime he begins by making any necessary preparations and then he sets out to take the various steps which culminate in the final act which accomplishes the crime. But he may stop or be interrupted at some stage. Then the question will be whether he has gone so far that he can be said to have attempted to commit the crime. It is well settled that mere preparation is not criminal. A few statutes have made acts preparatory criminal but otherwise the accused must have gone beyond that stage. It has often been said that to constitute an attempt the act must be proximate to and not remote from the crime itself. But that is hardly illuminating. It can be said that the accused must have begun to perpetrate the crime. But no words, unless so general as to be virtually useless, can be devised which will fit the immense variety of possible cases. Any attempted definition would, I am sure, do more harm than good. It must be left to common sense to determine in each case whether the accused has gone beyond mere preparation.
But this theory attaches a very different meaning to the word "attempt." The accused has done, as he did here, everything which he intended to do. There is no question of drawing a line so that remote acts of preparation are not attempts but acts proximate to the crime are attempts. The crime is impossible in the circumstances, so no acts could be proximate to it. The theory confuses attempt with intent. If the facts had been as he believed they were the man would have committed a crime. He intended to commit it. But he took no step towards the commission of a crime because there was no crime to commit.
I would not, however, decide the matter entirely on logical argument. The life blood of the law is not logic but common sense. So I would see where this theory takes us. A man lies dead. His enemy comes along and thinks he is asleep, so he stabs the corpse. The theory inevitably requires us to hold that the enemy has attempted to murder the dead man. The law may sometimes be an ass but it cannot be so asinine at that. And take another case. A man marries a woman believing that her husband is still alive; but in fact he died last week. The theory requires us to hold him guilty of attempted bigamy. Then suppose that the husband disappeared some time ago. The man who marries the wife may have a variety of beliefs. He may think it highly probable that the husband is still alive or he may think it quite likely or he may think the chance that the husband is still alive is small. In fact the husband is dead. I do not know how the theory would deal with those three possible cases.
The theory is really an attempt to punish people for their guilty intention. The man who stabs the corpse may be as deserving of punishment as a man who attempts to murder a living person. The accused in the present case may be as deserving of punishment as he would have been if the goods had still been stolen goods. But such a radical change in the principles of our law should not be introduced in this way even if it were desirable.
In my judgment this theory must be rejected. I think that the law was properly stated in Rex v. Percy Dalton (London) Ltd., 33 Cr.App.R. 102, 110:
"Steps on the way to the commission of what would be a crime, if the acts were completed, may amount to attempts to commit that crime, to which, unless interrupted, they would have led; but steps on the way to the doing of something, which is thereafter done, and which is no crime, cannot be regarded as attempts to commit a crime. "
I do not say that that is an exhaustive definition. It requires some explanation or expansion in at least one class of case. A man may set out to commit a crime with inadequate tools. He finds that he cannot break in because the door is too strong for him. Or he uses poison which is not strong enough. He is certainly guilty of attempt: with better equipment or greater dill he could have committed the full crime. Or the person whom he attempted to murder has moved a short distance away and he shoots at the place where the person was a short time earlier. There may well be borderline cases of that kind. We are not applying a rule but a principle and it must be applied sensibly. I would not seek to lay down the law in detail beyond what is necessary for the present case. I would answer the question certified in the negative and dismiss the appeal.
LORD MORRIS OF BORTH-Y-GEST.
My Lords, at the trial of the respondent the prosecution proceeded against him on one count only. It was a count charging him with the offence of attempting to commit the offence of handling stolen goods. Handling stolen goods is a statutory offence. It was established as an offence by section 22 of the Theft Act 1968. A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so.
Some goods were stolen in Liverpool. The plan of those who were connected with the theft was that the goods were to be taken by lorry to a place in Hertfordshire where the driver of the lorry would be met by some person or persons who would give directions or assistance in regard to the further movement of the goods to, and their disposal in, the London area. Before the goods reached the rendezvous in Hertfordshire they were, in fact, seized by the police. That was in Warwickshire. It was accepted by the prosecution that then and thereafter the goods were not io "be regarded as having continued to be stolen goods": section 24 of the Theft Act 1968. Arrangements were made, however, for the journey of the lorry (still containing some but not all of the goods) to be continued to the meeting place in Hertfordshire, though without any indication of police accompaniment. When the lorry reached the meeting place in Hertfordshire the respondent (who had others with him) presented himself and, being quite unaware of the events in Warwickshire, or of the concealed presence in the lorry of police officers, took a leading part in making arrangements for the future disposal of the goods.
In so acting was he attempting to handle stolen goods? In ordinary parlance mention of attempting to do something generally denotes a failure to do it. But at the meeting place in Hertfordshire the respondent did everything that he had set out to do. Within the meaning and the wording of section 22 he did handle the goods in question. When the lorry proceeded on towards the London area he had, as he thought, carried out the duties which had been assigned to him. He had assisted in the disposal of the goods. He had done so dishonestly. He believed that the goods were stolen goods. So he believed that he had handled stolen goods. But all unknown to him he had done no such thing. He had not handled stolen goods. The goods that he had, in fact, handled were not stolen. How, then, can it be said that he attempted to handle stolen goods? His belief that the goods were stolen did not make them stolen goods. Whatever other offence he may or may not have committed, he had been saved from committing an offence under section 22 in relation to stolen goods by the circumstance that his operations in Hertfordshire were not operations in relation to stolen goods. He had intended dishonestly to handle stolen goods. He did all the physical acts that he planned to do but those acts happened not to amount to the criminal offence of handling stolen goods. To convict him of attempting to handle stolen goods would be to convict him not for what he did but simply because he had had a guilty intention. In my view, that would not be right.
Save in respect of certain so-called absolute offences it is a broad principle of our law that what a man does does not make him a criminal unless he has a guilty mind: but the presence of a guilty mind does not transform what a man actually does into something that he has not done.
If a man forms the intention of killing X, and, finding X lying on a couch, plunges a dagger into his heart only to find it established that X had died a natural death some time previously, then he would not in fact have killed X. His intentions would have been wicked but fortuitously he would have been saved from committing the crime of murder. In my view, he could not be convicted of attempting to do that which it had not been possible for him to do. Another illustration of a situation in which a man' s guilty intention would not attract punishment for a crime was that propounded during the argument in Reg. v. Collins, 9 Cox C.C. 497 by Bramwell B. He instanced the case of a man taking an umbrella and having the intent to steal it. The umbrella turning out to be the man's own property, could he be convicted of attempting to steal it? I think not. As had been said by Cockburn C.J. in Reg. v. M'Pherson, Dears. & B. 197, 202: "The word attempt clearly conveys with it the idea, that if the attempt had succeeded the offence charged would have been committed"; . . . so also: "An attempt must be to do that which, if successful, would amount to the felony charged: . . ." The same line of thought was further expressed by Cockburn C.J. in Reg. v. Collins, 9 Cox C.C. 497, 499 when he said:
". . . that an attempt to commit a felony can only be made out when, if no interruption had taken place, the attempt could have been carried out successfully, and the felony completed of the attempt to commit which the party is charged."
In argument very many situations were discussed in a consideration of the types of cases where charges of attempt either could or could not be made. I doubt whether it is possible or desirable to set out any complete classification but, like Lord Hailsham of St. Marylebone L.C., I consider that the analysis contained in the judgment of Turner J. in Donnelly's Case [1970] N.Z.L.R. 980 is valuable. As I have had the advantage of reading in advance the opinion prepared by Lord Hailsham of St. Marylebone L.C. and as I am in agreement with it, I do not consider that I would serve any useful purpose by any further citation of the authorities to which he refers. Of recent cases I consider that Reg. v. Miller (1965) 49 Cr.App.R. 241 and Reg. v. Curbishley (1970) 55 Cr.App.R. 310 were wrongly decided.
I would answer the certified point of law in the negative and I would dismiss the appeal.
VISCOUNT DILHORNE.
My Lords, the respondent was tried at Liverpool Crown Court in September 1972, on an indictment containing two counts. The first charged him with the attempted handling of stolen goods, the particulars of offence alleging that he had attempted to handle 890 cartons of corned beef "knowing or believing" them to have been stolen.
The second count charged him with conspiracy; the particulars of offence alleging that he had conspired with persons unknown dishonestly to assist in the disposal of the cartons of corned beef "knowing or believing the same to have been stolen."
The beef was stolen in Liverpool. On September 28, 1971, a lorry was stopped when travelling south in the vicinity of Sutton Coldfield by two police officers on account of its condition. It was found to be carrying the stolen beef. The lorry was driven to Sutton Coldfield Police Station and there a plan was made to trap those persons who were to take delivery of the stolen beef. Some of it was unloaded. Two police officers got in the back of the lorry and another sat beside the driver who had been persuaded to complete his journey. A police car followed the lorry. It was conceded by the prosecution that on its journey to the rendezvous, the beef was in the lawful custody of the police. Section 24 (3) of the Theft Act 1968 provides that no goods shall be regarded as having continued to be stolen goods after they have been restored to the person from whom they were stolen or to other lawful possession or custody. Presumably it was thought that with three police officers passengers in the lorry driven by the driver who had driven the stolen beef from Liverpool, the beef was in their lawful possession or custody. Perhaps a different view might have been taken if the police had merely followed the lorry. Whether or not it was necessary to make this concession - and I am by no means sure that it was -it is unnecessary to decide. The case has to be dealt with on the basis that the beef had ceased to be stolen.
The driver drove to the rendezvous, the Scratchwood Service Area on the M.1 and there the respondent came on the scene, It is not necessary to go into detail about what happened thereafter. It it sufficient to say that the respondent directed the lorry where to go and the evidence showed clearly that he was acting in concert with those who had planned to dispose of the beef.
There had been an earlier trial of Dixon, the driver of the lorry and two men called Mooney and Maeder. They were charged with conspiracy but as they were convicted of other offences in relation to the corned beef, that charge was nod proceeded with and they were found not guilty of it. That having been done, I appreciate that the respondent could not have been charged with conspiring with them, but he was not charged with that but with conspiring with persons unknown and I do not see that the acquittal of these three on a charge of conspiracy was any bar to the prosecution of the respondent on a properly framed charge of that offence.
If the beef was in the lawful custody of the police, then the respondent might have been charged with attempting to steal it but the prosecution, recognising that he could not be convicted of handling stolen goods, as it was conceded that they had ceased to be stolen, thought fit, perhaps encouraged by a text book, to charge him with attempted handling, the particulars of offence alleging not that the goods were stolen but only that he knew or believed them to be.
It is, in my opinion, clear that section 22 (1) of the Theft Act 1968 does not make the handling of goods which are not stolen goods an offence if a person believes them to have been stolen. The offence created by that section is in relation to goods which are stolen and it is an ingredient of the offence that the accused must how or believe them to have been stolen. The word "believing" was, I think, inserted to avoid the possibility of an accused being acquitted when there was ample evidence that he believed the goods stolen but no proof that he knew they were.
The prosecution, having made the concession that the goods had ceased to be stolen, were therefore right in thinking that the respondent could not be convicted of handling stolen goods, and the question for decision in this case is whether he can be convicted of attempted handling of stolen goods when they were not in fact stolen but he believed them to be stolen It is not necessary to consider in this case whether the respondent's actions amounted to an attempt or were only acts preparatory to an attempt.
Mr. Morgan for the appellant, referred to a large number of cases, to some of which I must now refer. In Reg. v, Goodchild (1846) 2 Car. & K. 293 the accused was charged with using an instrument with intent to procure a miscarriage. I do not consider it has any relevance to this case.
In Reg. v. Collins (1864) 9 Cox C.C. 497 it was contended that a pickpocket who put his hand into an empty pocket was not guilty of attempted larcency.Cockburn C.J. delivering the judgment of the court which consisted of five judges including Bramwell B. held, following Reg. v. M'Pherson (1857) Dears. & B. 197, at p. 499:
"an attempt to commit a felony can only be made out when, if no interruption had taken place, the attempt could have been carried out successfully, and the felony completed of the attempt to commit which the party is charged. In this case, if there was nothing in the pocket of the prosecutrix, in our opinion the attempt to commit larceny cannot be established. It may be illustrated by the case of a person going into a room, the door of which he finds open, for the purpose of stealing whatever property he may find there, and finding nothing in the room, in that case no larceny could be committed, and therefore no attempt to commit larceny could be committed."
In Reg. v. M'Pherson, Dears. & B. 197 the accused was charged with breaking and entering a dwelling-house and stealing certain goods therein. At the time of the breaking and entering the goods were not in the house. He was acquitted of the felony but convicted of breaking and entering and attempting to steal the prosecutor's goods. It was held that the conviction was wrong as there was no attempt to commit the felony charged within the meaning of section 9 of the Criminal Procedure Act 1851 (14 & 15 Vict. c. 100).
That Statute of 1851 by section 4 provided that a jury if it appeared that the defendant did not complete the offence charged "but that he was guilty only of an attempt to commit it" might return a verdict of guilty of the attempt.
In the course of the argument Coleridge J. and Cockburn J. drew attention to the distinction between intent and attempt and in his judgment Cockburn C.J. said, at p. 202:
"An attempt must be to do that which, if successful, would amount to the felony charged; but here the attempt never could have succeeded, as the things which the indictment charges the prisoner with stealing had been already removed - stolen by somebody else."
Presumably M'Pherson might have been charged with and convicted of breaking and entering with intent to steal and Collins of loitering with intent to steal.
In Reg. v. Brown (1889) 24 Q.B.D. 357 Lord Coleridge C.J. referred to the unreported decision in Reg. v. Dodd where it was said that a person could not be convicted of an attempt to commit an offence which he could not actually commit and said, at p. 359:
"We are all . . . of opinion that Reg. v. Dodd is no longer law. It was decided on the authority of Reg. v. Collins and that case, in our opinion, is no longer law."
In Reg. v. Ring (1892) 17 Cox C.C. 491, another pickpocket case, Lord Coleridge C.J. again said that Reg. v. Collins was bad law and that that was the view of nine judges. In neither of these cases were any reasons given for that statement. In Reg. v. Brown no counsel appeared so there was no argument. I do not therefore regard these decisions as authoritative. In 1879 a draft Criminal Code was produced, paragraph 74 of which read as follows:
"Everyone who, believing that a certain state of facts exists, does or omits an act the doing of which would if that state of facts existed be an attempt to commit an offence, attempts to commit that offence, although its commission in the manner proposed was by reason of the non-existence of that state of facts at the time of the act or omission impossible."
According to Archbold Criminal Pleading Evidence & Practice, 38th ed. (1973), para. 4111, the commissioners who drafted the code declared that this proposition (although irreconcilable with the decisions in Reg. v. Collins and Reg. v. M'Pherson), stated the common law and it was perhaps on account of this that in Reg. v. Brown and Reg. v. Ring it was stated that Reg. v. Collins was bad law.
Legislative effect has been given tb this provision in New Zealand. Section 72 (1) of the Crimes Act 1961 of that country is in the following terms:
"Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not."
There has been no similar legislation in this country.
In Reg. v. Williams [1893] 1 Q.B. 320 Lord Coleridge C.J. held that a boy charged with the rape of a girl of 13 when it was proved that he was under the age of 14 could not be convicted of rape; "nor could he, in my opinion," he said, at p. 321: "be convicted of attempting to do that which the law says he was physically incapable of doing." Hawkins J. and Cave J. appear to have doubted whether Lord Coleridge C.J.'s view was right and to have thought that the boy, although he could not have been convicted of rape, might be convicted of the attempt.
So at this time it appears to have been the view of Lord Coleridge C.J. that though a man might be convicted of attempting a crime which he could not commit, attempting to steal when there was nothing for him to steal, he could not be convicted of attempting a crime which the law said he could not commit.
In Rex v. Percy Dalton (London) Ltd. (1949) 33 Cr.App.R. 102, the Court of Criminal Appeal held that it was impossible to say on the same facts that the company could be convicted of the attempt to sell goods above the maximum permitted price when the completed transaction was no offence.
In my opinion, this was right and Reg. v. Collins, 9 Cox C.C. 497 and Reg. v. M'Pherson, Dears. & B. 197 were rightly decided for it is conduct that is normally made punishable as a criminal offence, not just the belief of the accused. It may be morally he may have sinned as much as a result of his belief but it is conduct that is made punishable under our law. A man cannot attempt to handle goods which are not stolen. A man taking his own umbrella from a club thinking it the property of someone else does not steal. His belief does not convert his conduct into an offence if his conduct cannot constitute a crime. In my view, it matters not that the crime cannot be committed as a result of physical impossibility, e.g. the absence of the property he wants to steal, or of legal impossibility. In either case he cannot be convicted of an attempt when he could not be convicted of the full offence if he had succeeded in doing all that he attempted to do. Conduct which is not criminal is not converted into criminal conduct by the accused believing that a state of affairs exists which does not exist.
In Reg. v. Miner (1965) 49 Cr.App.R. 241 where the driver of a lorry approached by the appellants in that case td permit them to steal its load, reported that to his employer and on his instructions took the lorry to the appointed place and helped them to unload it, it was held that though they could not be convicted of larceny as the goods were not taken against the will of the owner, nevertheless they might be convicted of attempted larceny. That case was, in my opinion, wrongly decided; and so was Reg. v. Curbishley (1970) 55 Cr.App.R. 310 where a conviction for attempted handling of stolen goods was upheld though at the time of the attempt the stolen goods had been removed by the police and so had ceased to be stolen.
For these reasons is my opinion this appeal should be dismissed.
LORD SALMON. My Lords, for the reasons given by my noble and learned friend, the Lord Chancellor, I too would dismiss this appeal.
ORDER
Appeal dismissed.
Crown Copyright acknowledged
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